The emphasis on objective unreasonableness is firmly rooted in the
admonition that an award of attorneys' fees must comport with the
purposes of the Copyright Act. "As such, the imposition of a fee award
against a . . . [party] with an objectively reasonable litigation
position will generally not promote the purposes of the Copyright Act."
Matthew Bender, 2001 WL 50857, at *5. Indeed, a court should not award
attorneys' fees where the case is novel or close because such a
litigation clarifies the boundaries of copyright law. See Lotus Dev.
Corp. v. Borland Int'l, Inc., 140 F.3d 70, 75 (1st Cir. 1998) ("When
close infringement cases are litigated, copyright law benefits from the
resulting clarification of the doctrine's boundaries. But because novel
cases require a plaintiff to sue in the first place, the need to
encourage meritorious defenses is a factor that a district court may
balance against the potentially chilling effect of imposing a large fee
award on a plaintiff, who, in a particular case, may have advanced a
reasonable, albeit unsuccessful, claim."); see also Fogerty, 510 U.S. at
527 ("Because copyright law ultimately serves the purposes of enriching
the general public through access to creative works, it is peculiarly
important
that the boundaries of copyright law be demarcated as clearly as
possible.").

No amount of copying will constitute infringement where a defendant
copies only the trivial or non-original contributions of a plaintiff's
work. See Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 909 (2d Cir.
1980). This is consistent with the broader understanding that "[t]he sine
qua non of copyright is originality." Feist Publications, 499 U.S. at
345. While the standard of originality is low, it is well established
that a work must possess more than a de minimus amount of creativity. See
id. at 345, 362.

As to the first element of a successful copyright infringement suit,
EFL was objectively unreasonable in its position that the Earth Flag was
sufficiently original to warrant copyright protection. As stated in the
Opinion, the Earth Flag "is nothing more than a public domain photograph
transferred from the medium of paper to the medium of fabric." Opinion at
*4. Such reproduction in a new medium, adding only mechanical skill and
de minimus artistic vision, was squarely rejected as protectable by the
Second Circuit. See L. Batlin & Son, Inc. v. Snyderl, 536 F.2d 486, 491
(2d Cir. 1976) (rejecting a similar claim that reproducing a plastic
version of a cast iron "Uncle Sam" toy coin bank in the public domain
is sufficiently original to support a copyright). Indeed, Professor
Nimmer suggests that a contrary rule would lead to "the ludicrous result
that the first person to execute a public domain work of art in a
different medium thereafter obtains a monopoly on such work in such
medium, at least as to those persons aware of the first
such effort." M. Nimmer, The Law of Copyright § 20.2, at 94 (1975).
Even if pursued in subjective good faith, the notion that EFL could
maintain copyright protection for its Earth Flag was unreasonable by any
standard. EFL's Earth Flag lacks even the modicum of originality and
creativity necessary for copyright protection.*fn1

In an attempt to overcome the glaring lack of originality in the Earth
Flag, EFL argued that "sweat of the brow" should be
a factor in considering originality, an argument that was squarely rejected
by the Supreme Court in Feist.*fn2 See Feist, 499 U.S. at 359-60
(holding that Congress's 1976 revisions to the Copyright Act left "no doubt
that originality, not `sweat of the brow,' is the touchstone of copyright
protection. . . ."). EFL failed to demonstrate any original elements of
the Earth Flag and sought to use "sweat of the brow" as the only factor
warranting copyright protection. See Opinion at *5. EFL's reliance on a
doctrine that was clearly rejected by the Supreme Court was objectively
unreasonable.

Because EFL's position regarding the first element of its case against
Alamo and eBay was objectively unreasonable, a discussion of the
remaining elements of a successful copyright infringement claim is
unnecessary. However, to emphasize the unreasonableness of EFL's claim
against Alamo, the issue of substantial similarity between Alamo's flag
and any protectable elements of the Earth Flag was not, as EFL argues, a
close or complex question. See EFL's Memorandum of Law in Opposition to
the Attorneys' Fees Motion of Alamo at 6. First, the photograph of the
Earth is in the public domain, and therefore, is an unprotectable element
of the Earth Flag. See L. Batlin & Son, 536 F.2d at 490. Second, the dark
blue color of the flag is unprotectable. See Opinion at *7. Finally, the
similarities of idea and function between the two flags are unprotectable
in that there are only a limited number of ways to convey the idea of a
flag with a photograph of the Earth from space and whose background
resembles space's dark void. See id. at 8. By necessity, any such flag
will resemble EFL's Earth Flag. See Queenie, Ltd. v. Sears, Roebuck &
Co., 124 F. Supp.2d 178, 181 (S.D.N.Y. 2000) ("[S]imilarity in expression
is non-infringing when the nature of the creation makes such similarity
necessary."). In short, it was not difficult to conclude that the
similarities between Alamo's flag and the Earth Flag concerned only
non-copyrightable elements of the Earth Flag. See Opinion at *8.

This case presented a straightforward copyright infringement claim that
was objectively unreasonable. This case did not involve complicated
issues of law and fact, and an award of attorneys' fees in such a case
would beneficially deter, rather than excessively chill, future
lawsuits. See Procter & Gamble, Co. v. Colgate-Palmolive Co.l, No. 96
Civ. 9123, 1999 WL 504909, at *4 (S.D.N.Y. July 15, 1999). Failing to
award attorneys' fees to defendants in such situations would invite
others to bring similarly unreasonable actions without fear of any
consequences. Under the circumstances of this case, and "to advance
considerations of compensation and deterrence," defendants must be
compensated for being forced to defend against such a baseless action.
Fogerty, 510 U.S. at 533 n. 19.

B. Amount of Attorneys' Fees

Having determined that attorneys' fees for defendants are warranted in
this case, it is now necessary to consider the amount of such an award.
Under the Copyright Act, 17 U.S.C. § 505, the Court must determine a
"reasonable" award. The starting point of the attorney's fee calculation
is the "lodestar" method, under which fees are determined by multiplying
the number of hours reasonably expended
on the litigation by a reasonable hourly rate. See Hensley v. Eckerhart,
461 U.S. 424, 433 (1983); Cohen v. Haven Bd. of Police Comm'rs,
638 F.2d 496, 505 (2d Cir. 1980). The fee application must be
supported by contemporaneous time records that "specify, for each attorney,
the date, the hours expended, and the nature of the work done." New York
State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148
(2d Cir. 1983). "Where the documentation of hours is inadequate, the
district court may reduce the award accordingly." Hensley, 461 U.S. at 433.
In addition to the amount of work, the award should reflect the skill of the
attorneys and the results achieved. See N.A.S. Import, Corp. v. Chenson
Enterprises, Inc., 968 F.2d 250, 254 (2d Cir. 1992).

1. Alamo's Attorney's Fees

In his affidavit, Alamo's counsel, Nicholas Goodman, swore that he
billed his time at $175 per hour and that the associate time was billed
at $150 per hour. See H. Nicholas Goodman's 6/8/01 Affidavit in Support
("Goodman Aff.") ¶ 3. These rates are reasonable, given the
background and skill exhibited by Mr. Goodman. Mr. Goodman also swore
that he billed a total of 105.1 hours, and his associate billed 115.1
hours. See id. ¶ 4. These hours are reasonable with respect to the
amount of work required to achieve the favorable result in this case. At
the attorneys' respective hourly rates, the "lodestar" amount for Alamo
is $35,657.50. Alamo also requests an additional $904.42 for
disbursements incurred, including the charge for EFL's deposition
transcript, copying, postage and overnight mail, bringing the total fee
amount to $36,561.92. See id.

2. eBay's Attorney's Fees

In his affidavit, eBay's counsel, Harvey Shapiro, swore that he billed
his time at $225 per hour and that the associate time was billed at $175
per hour. See 6/4/01 Affidavit of Harvey Shapiro ("Shapiro Aff.") ¶
2. These rates are also reasonable, given counsel's background and
skill. Shapiro billed a total of 311.7 hours, and his associate billed 10
hours. See Invoices for Professional Service, Ex. A to Shapiro Aff. These
hours are reasonable and commensurate with the amount of work that was
required to achieve the favorable result in this case.*fn3
At these rates and hours, eBay's "lodestar" amount is $71,882.50.*fn4
However, because eBay has moved for $69,565.00, eBay will be awarded
that amount. See Shapiro Aff. ¶¶ 2, 4.

eBay also requests fees for two in-house attorneys, Mr. Monahan and
Mr. Richter, in the amount of $22,500 for 100 hours at a rate of $225 per
hour. See Shapiro Aff. ¶ 3. Although the work of in-house counsel
may be included in the award of attorney's fees, I decline to do so
here. See Broadcast Music, Inc. v. R Bar of Manhattan, Inc.,
919 F. Supp. 656, 661 (S.D.N Y 1996). Not only did eBay fail to present
an itemized list of the work done by either of these attorneys,*fn5 an
additional 100 hours above the 311.7 hours spent by eBay's counsel would
be excessive.

III. CONCLUSION

For the reasons stated above, defendants' motion for attorney's fees is
granted. EFL is ordered to pay Alamo's attorney's fees in the amount of
$36,561.92. EFL is also ordered to pay eBay's attorney's fees in the
amount of $69,565.00.

SO ORDERED

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